Gun Background Check Laws

by Edwin Thomas

Background checks for guns have one simple purpose: to deny easy access to guns and gun privileges. The concern with such laws are to balance gun ownership rights against the needs of a safer society. Gun background checks are usually thought of as applying only to handgun sales, but they are also pertinent to concealed carry permits and automatic weapons sales.


Mandatory background checks for handgun purchases began with the Brady Handgun Violence Prevention Act of 1993, better known simply as the Brady Law. It was named after James Brady, an aide of Ronald Reagan's who was shot and crippled during a 1981 assassination attempt. The original law required a background check for anyone purchasing a handgun from a dealer with a federal license, and a maximum of a five-day deadline for that check to be completed. There was a general misunderstanding about the five-day waiting period, because it was never a required wait. If a background check was completed before five days, the dealer was authorized to sell the gun. The five-day waiting period expired in 1998.

Current Law for Purchases

Concurrent with the expiration of the five-day waiting period was the launch of the National Instant Criminal Background Check System (NICS). This criminal records database is administered by the FBI. Licensed firearms dealers are still required to wait up to three days for notice from the NICS regarding handgun purchases, but if no such notice is received, they are authorized to proceed with the sale. This is a significant difference from the original Brady Law, since if no notice had been received after five days the sale was blocked by default.

The Straw Purchase Loophole

The Brady Law is actually relatively easy to circumvent, through "straw purchases." This is when a person purchases a gun through a surrogate. Only the purchaser receives a background check. Straw purchases are technically illegal under a 1968 law, but gifts are not, granting a very large loophole to any surrogate who has a demonstrable relationship with the person who actually wants the gun.

The Gun Show Loophole

A gun show.

Another loophole is that the law applies only to licensed dealers. Non-licensed dealers can still sell firearms, subject to other federal, state or local regulations, and without making background checks. This exemption for private sales has been dubbed the "Gun Show Loophole," as these events are where many of those transactions take place.

Concealed Weapons Permits

This compact holster is ideal for concealment.

Background checks are also usually required to obtain a concealed carry permit for a gun, which is an entirely separate issue from gun purchases. Thirty-nine states have "shall carry" laws, which are laws that state that any applicant who can meet specified criteria will be issued a concealed carry permit. These criteria always include a background check.

Automatic Weapons

A collectors item like this Thompson submachinegun is subject to NFA law.

Legal ownership of automatic weapons has been regulated since the passage of the National Firearms Act (NFA) in 1934. Since 1986, transfer and sale of these legal automatic weapons requires registration with the ATF and an extensive background check.

Photo Credits

  • Wikimedia Commons